01A02778
03-21-2002
Daisy Kosine, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Daisy Kosine v. Department of Agriculture
01A02778
March 21, 2002
.
Daisy Kosine,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A02778
Agency No. 941228
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of sex (female), national origin (Hispanic), and
in reprisal for prior protected EEO activity under Title VII when she
was denied the opportunity to accrue credit hours.
The record reveals that during the relevant time, complainant was
employed as an Information Assistant in the Supervisor's Office, Bighorn
National Forest facility, Sheridan, Wyoming. Complainant states that her
Supervisor (S1) refused to allow her to accrue as many credit hours as
she had under her previous Supervisor. Complainant further states that
while S1 required her to get verbal approval for credit hours, even though
the exigencies of her position made it difficult to know in advance when
credit hours would be necessary, the other employees in her office were
allowed to earn credit hours without S1's prior approval. Believing she
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on December 28, 1994. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision.
In its FAD, the agency concluded that while complainant established a
prima facie case of sex, national origin, and reprisal discrimination,
it articulated legitimate, non-discriminatory reasons for its actions,
which complainant failed to show were pretext for unlawful discrimination.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
Assuming, arguendo, complainant established a prima facie case of sex,
national origin, and reprisal discrimination, the agency has articulated
legitimate, non-discriminatory reasons for its actions. In her affidavit,
S1 stated that complainant was permitted to earn credit hours in her
position, however she would deny complainant's requests to earn credit
hours on Saturdays. S1 stated this was because the reasons provided by
complainant were personal and not work related, in violation of agency
regulations requiring that, �work on the weekends should be �for the
benefit of the government,' not convenience of the individual,� and
must be approved by a Supervisor. (Investigative Report, Exhibit F13c).
Further, one of complainant's co-workers (CW1) stated that even though
he did not always need prior approval from S1 to earn credit hours,
neither did he have �carte blanche approval�, and he would often discuss
the circumstances of his requests for credit hours with S1. CW1 also
states there were occasions when he and S1 would renegotiate deadlines
so as to eliminate the needs for credit time. (I.R., Exhibit F5).
Another of complainant's co-workers (CW2) stated that while she wasn't
required to ask S1 each time she wanted to earn credit hours, she and S1
had an understanding about the specific type of work which would justify
the request.
The Commission finds that complainant has proffered no persuasive evidence
to establish that the reasons stated by the agency are mere pretext for
discrimination. While the record indicates that the comparatives cited
by complainant were not always required to obtain S1's prior approval,
we find that complainant has not met her burden of establishing, by a
preponderance of the evidence, that any difference in treatment was based
on discriminatory or retaliatory animus. In this regard, we note that
the record establishes that the comparatives occupied different positions
and that S1 explained why she queried complainant's need for credit hours
given the duties of her position. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 21, 2002
__________________
Date